Rodriguez v. Dixie N.Y.C., Inc.

• Decision Date: 09 February 2006
• Docket Number: 7814.
• Citation: 2006 NY Slip Op 01093,810 N.Y.S.2d 34,26 A.D.3d 199
• Parties: JOSE RODRIGUEZ, Appellant-Respondent, v. DIXIE N.Y.C., INC., Doing Business as McFADDEN'S SALOON, Respondent, et al., Defendant. 825 SECOND AVENUE RESTAURANT CORP., Nonparty Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

26 A.D.3d 199

810 N.Y.S.2d 34

2006 NY Slip Op 01093

JOSE RODRIGUEZ, Appellant-Respondent, v.DIXIE N.Y.C., INC., Doing Business as McFADDEN'S SALOON, Respondent, et al., Defendant825 SECOND AVENUE RESTAURANT CORP., NonpartyRespondent-Appellant.

7814.

Appellate Division of the Supreme Court of the State of New York, First Department.

February 9, 2006.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered June 25, 2004, which, inter alia, denied plaintiff's motion insofar as it sought to amend the caption to include as a defendant Dixie N.Y.C., Inc., doing business as McFadden's Saloon (Dixie) and a default judgment as against Dixie, but granted the motion insofar as it sought a default judgment against defendant 825 Second Avenue Restaurant Corp. (Restaurant Corp.), unanimously modified, on the law and the facts, to grant that branch of the motion seeking to amend the caption and to deny in its entirety that part of the motion seeking judgment by reason of the default in answering the complaint, and otherwise affirmed, without costs.

While the corporation actually served, defendantRestaurant Corp., is separate from nonparty respondent Dixie, the corporations share the same address, the same owner, the same corporate counsel and the same insurer.It is undisputed that corporate counsel for both corporations received the summons and complaint, and since Restaurant Corp. does business under the name of "Calico Jacks," while "McFadden's Saloon"(McFadden's), the name under which Dixie does business, is the name used in the complaint to identify the site of the alleged accident, Dixie...